Excerpt:.....under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- there was a dispute at the well of mazhabis between shangara singh on the one hand and geja singh on the other. the dispute ended in grappling at the well but the two were separated. their evidence which has been accepted by the learned judge of the court below shows that after the grappling at the well, geja singh went home, left his bucket of water there and came back to the shop of dalip singh mehra......and 7 p.m. there was a dispute at the well of mazhabis between shangara singh on the one hand and geja singh on the other. shangara singh and sohan singh seem to be relatives and there is some proof that shangara singh was living with sohan singh. the dispute ended in grappling at the well but the two were separated. shangara singh then went home and it is stated that sohan singh and shangara singh armed themselves with 'dangs' and came to the spot where geja singh had also come after having been home and left his bucket of water there. there was an exchange of abuse and then sohan singh and shangara singh started beating geja singh. one of the blows fell on geja singh's head and he fell down, was taken to the hospital at algaon and died there the following day at 8 p.m.3. the first.....

Judgment:

Kapur, J.

1. This is an appeal brought by Sohan Singh against his conviction for an offence under Section 302, Penal Code.

2. The facts of the case are that on 31-5-1948 between the hours of 6 and 7 P.M. there was a dispute at the well of Mazhabis between Shangara Singh on the one hand and Geja Singh on the other. Shangara Singh and Sohan Singh seem to be relatives and there is some proof that Shangara Singh was living with Sohan Singh. The dispute ended in grappling at the well but the two were separated. Shangara Singh then went home and it is stated that Sohan Singh and Shangara Singh armed themselves with 'dangs' and came to the spot where Geja Singh had also come after having been home and left his bucket of water there. There was an exchange of abuse and then Sohan Singh and Shangara Singh started beating Geja Singh. One of the blows fell on Geja Singh's head and he fell down, was taken to the hospital at Algaon and died there the following day at 8 p.m.

3. The first information report was lodged by Rur Singh, a brother of Geja Singh, at 2 P.M. on 1-6-1948 and naturally at that time it was a report under Section 307, Penal code.

4. Shangara Singh absconded but was arrested after a short time and was tried by the learned Sessions Judge, Amritsar, but we are told that he was acquitted although the judgment is not before us. Sohan Singh had also absconded and after some period of time he was arrested in Bikaner State. He was tried by another Sessions Judge of Amritsar and has been convicted under Section 302, Penal Code and given transportation for life.

5. The evidence which has been produced by the prosecution consists of Rur Singh, P. W. 2, Meja Singh P. W. 4 and Prito P. W. 5, the wife of Geja Singh deceased. Their evidence which has been accepted by the learned Judge of the Court below shows that after the grappling at the well, Geja Singh went home, left his bucket of water there and came back to the shop of Dalip Singh Mehra. Soon after Sohan Singh and Shan-gara Singh also arrived at the spot armed with 'dangs' and after an exchange of abuse blows were given by Shangara Singh and Sohan Singh and it was a blow given by Sohan Singh, which fell on the head of Geja Singh, which seems to be the fatal blow. Prom this evidence, there is no doubt that the injuries were caused by Sohan Singh and it is not necessary to say anything about Shangara Singh because he has been acquitted. The only question to be decided is what is the offence made out in these circumstances. It is no doubt true that Sohan Singh and Shangara Singh came armed with 'dangs' and that there was an exchange of abuse but that would not show that the offence committed was one of murder. After the exchange of abuse, some blows were given and in the circumstances of this case it appears that the intention was one to give a beating and not necessarily to kill. That being so, I think the offence would fall under Section 304, Part II, Penal Code. I world, therefore, alter the conviction from one under Section 302 to one under Section 304, Part II, Penal Code and reduce the sentence from transportation to a period of five years' rigorous imprisonment. I would, therefore, allow the appeal to that extent.